Bakari Hamisi Shee v Independent Election and Boundary Commission & 2 others [2017] KEMC 11 (KLR)
The bottom line
#A Kenyan court threw out an election petition because its paperwork contradicted itself, confirming that sloppily drafted petitions won't be rescued by court discretion.
What this practically means
#Executive summary
#Key legal issues
#Effect of misdescription and non-compliance with Rules 8(1) and 12(2) on an election petition
The Petition was struck out because the Petition and the supporting affidavit were mutually exclusive, so the Petition was unsupported by an affidavit disclosing the results as required by law.
The court adopted the 'third view' in Samuel Kazungu Kambi that the determinant factor is the extent of compliance in each case. While the Petition complied with Rule 8(1)(a) on name and address, it omitted the results and dates of declaration. The affidavit purportedly supplying these described the deponent as the chief agent of the Jubilee candidate and referred to 'my votes', creating contradictions so fundamental that Article 159(2)(d) could not cure them.
Whether the Respondents' failure to file notices of address for service within Rule 10(4) warranted striking out their responses
The Petitioner's application was dismissed; the Respondents had substantially complied and the Petitioner was not prejudiced.
The court applied the substantial-compliance standard. The 1st and 2nd Respondents filed their notices albeit late, and the 3rd Respondent's notice of appointment was treated as a notice of address for service as a matter of form. The Petitioner himself served the Petition outside the seven days allowed by Rule 10(1), weakening his position on hierarchical culpability.
Legal principles established
#- Where a Petition and its supporting affidavit are so out of sync that they fail to communicate the Petitioner's complaints and prayers, Article 159(2)(d) cannot save the Petition from being struck out.
- Substantial compliance with the Election Petition Rules is sufficient; strict 100% compliance is not required, but the defect must not render the petition hopeless.
Court orders
#- 1.Allowed the Notice of Motion by the 1st and 2nd Respondents dated 16th October, 2017 striking out the Petition for failure to comply with Rule 8(1) and 12(2), with costs
- 2.Allowed the Notice of Motion by the 3rd Respondent dated 6th November, 2017 and struck out the Petition, with costs to the 3rd Respondent
- 3.Dismissed the Petitioner's Notice of Motion dated 2nd November, 2017 with costs
- 4.Summarily rejected and struck out the Petition under Section 79 of the Elections Act
- 5.Costs either way capped at Kshs. 100,000
- Jurisdiction invoked
- Articles 87 and 105 of the Constitution; Elections Act No. 24 of 2011; Election (Parliamentary and County) Elections Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakari Hamisi Shee v Independent Election and Boundary Commission & 2 others [2017] KEMC 11 (KLR)", Case Analysis (2017). Election Petition dated 6th September, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/11/eng@2017-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.